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2024 DIGILAW 1076 (PNJ)

State of Punjab v. Nestle India Ltd.

2024-07-18

SUDEEPTI SHARMA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, J. The State of Punjab becomes aggrieved from the rendition of Annexure A-5 by the Hon'ble VAT Tribunal, Punjab, Chandigarh, wherebys not only the rendition of Annexure A-2, was set aside but also the rejection of the appeal reared thereagainst, thus was through an order Annexure A-3 hence quashed and set aside. 2. The striking fact which emerges, thus for a decision being made about the validity of the rendition of Annexure A-5, is that, the demand as raised by the revenue department related to the assessment year 2002-03. 3. In respect of the said assessment year, through an assessment order drawn by the Assessing Authority-cum-AETC Moga, on 10.12.2007 (Annexure A-1) rather no liabilities towards tax became fastened under The Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Act of 1948"), thus upon the assessee, rather it was therebys declared that the assessee becomes entitled to a refund of Rs. 4,18,358/-. 4. Be that as it may, through Annexure A-2 the very same Assessing Authority-cum-Assistant Excise and Taxation Commissioner, Moga, rather reviewed the said order and proceeded to assess the fastenable tax liability vis-a-vis the assessee, thus in a sum of Rs. 1,48,03,499/-. 5. The appeal reared thereagainst by the aggrieved-assessee resulted in a dis-affirmative order (Annexure A-3) becoming passed, whereupon an appeal (Annexure A-4) was reared by the assessee before the Hon'ble Punjab Tax Tribunal, which resulted in the drawing of Annexure A/5, whereby both Annexures A-2 and A-3 became quashed, and, set aside. 6. The only question which arises for determination in this case is whether, the exercise of review jurisdiction by the Authority which initially made Annexure A-1, whereins, no fastenable tax liability under the Act of 1948 was noticed, thus was a permissibly exercised review jurisiction. 7. For the reasons to be assigned hereinafter, the review of Annexure A-1, as made by the Assessing Authority-cum-Assistant Excise and Taxation Commissioner, Moga, whereby through the reviewing of Annexure A-1, as made through Annexure A-2, rather the earlier made exculpation towards tax liability (Annexure A-1) became quashed and set aside, thus was an impermissibly exercised review jurisdiction. 8. Conspicuously the relevant assessment year is 2002-03. Since the emergence of the apposite tax liabilities, thus under Punjab VAT Act, 2005 (hereinafter referred to as "the Act of 2005"), related to the said assessment year, thus obviously the Act (supra), was applicable. 8. Conspicuously the relevant assessment year is 2002-03. Since the emergence of the apposite tax liabilities, thus under Punjab VAT Act, 2005 (hereinafter referred to as "the Act of 2005"), related to the said assessment year, thus obviously the Act (supra), was applicable. Consequently, the liabilities towards the fastenable tax upon the assessee but were required to be computed in terms of the then in existence Act of 1948. However, even if the Act of 1948 became repealed by Act No.8 of 2005. Nonetheless when clause (e) of sub Section 2 of Section 92 of the Act of 2005, provisions whereof becomes extracted hereinafter, explicitly postulate that yet any investigation, enquiry, assessment or proceeding, as became initiated under the repealed Act of 1948, rather would remain unaffected by the coming into force of the Act of 2005. Resultantly, the effect of the speakings (supra) made in clause (e) of sub Section 2 of Section 92 of the Act of 2005, is that, the investigations, enquiries or assessments proceedings, as become initiated in respect of the relevant assessment year 2002-03, rather would also remain unaffected by the Act of 1948 becoming repealed by the Act of 2005, but irrespective of the fact that Annexure A-1, became rendered post the making of the Act of 2005. "92 (1) xxx (2) (a) xxx (e) affect any investigation, enquiry, assessment, proceeding, any other legal proceeding or remedy instituted, continued or enforced under the repealed Act, and any such penalty, forfeiture or punishment or any proceeding or remedy instituted, continued, or enforced under the repealed Act, shall be deemed to be instituted, continued or enforced under the corresponding provisions of this Act." 9. The more striking reason for marshalling the above inference, is deeply entrenched in the fact, that the assessment year rather is the ready reckoner or the stark year, wherefroms the validities of the launching of further enquiries, proceedings, thus are required to become gauged. Therefore, when as stated (supra), when the assessment proceedings for computing the tax liabilities against the present respondent were qua the assessment year 2002-03, besides when then the repealed Act of 1948 was in existence. Resultantly, the launchings of any enquiries or proceedings, in respect of the assessment year (supra), especially when reiteratedly at the era (supra), the Act of 1948 was in vogue. Resultantly, the launchings of any enquiries or proceedings, in respect of the assessment year (supra), especially when reiteratedly at the era (supra), the Act of 1948 was in vogue. In sequel, when evidently the assessment proceedings, which became sparked from the assessment year (supra), assessment year whereof fell in a phase when the Act of 1948 was in existence. Therefore, any assessment proceeding which became engendered from the assessment year 2002-03, in year whereof, the Act of 1948 was in existence. In aftermath, when the assessment year (supra), is to be construed to be falling within the ambit of the clause (e) of sub Section 2 of Section 92 of the Act of 2005, besides when the pursuant thereto launched investigations, enquiries of assessments proceedings, thus are to be concomitantly construed to be falling within the ambit of clause (e) of sub Section 2 of Section 92 of the Act of 2005, wherebys such investigations, enquiries, assessment proceedings launched in respect of any assessment year, assessment year whereof, evidently fell/falls in a year when the repealed Act of 1948 was in force, but became/becomes saved from applications theretos of the Act No.8 of 2005, wherebys became repealed the Act of 1948. Resultantly the statute governing the subject lis, thus in the Act of 1948. 10. Having said so, it has to be now determined whether there was any jurisdiction of review vested, under the repealed Act of 1948, especially when during the phase of its continued currency, thus the proceedings qua assessment of tax liability became initiated, qua the relevant assessment year, year whereof fell during the term of the operation of the repealed Act of 1948. Since the assessment year rather is the moot point or the ready recknor for applying thereon, the mandate clause (e) of sub Section 2 of Section 92 of the Act of 2005, whereunders assessments or any subsequent thereto enquiries or proceedings as launched under the repealed Act of 1948, become completely protected and/or do not require being covered within the ambit of the statutory provisions, as embodied in the Act of 2005. Therefore, since in the repealed Act of 1948 there is no explicitly conferred review jurisdiction upon the authorities constituted thereunders, therebys the review of Annexure A-1 but naturally was impermissible and was also without any jurisdiction. 11. Therefore, since in the repealed Act of 1948 there is no explicitly conferred review jurisdiction upon the authorities constituted thereunders, therebys the review of Annexure A-1 but naturally was impermissible and was also without any jurisdiction. 11. Lastly, it is important to refer to the fact that in terms of Section 11(3) of the Act of 1948, provisions whereof becomes extracted hereinafter, any assessment to tax liability was required to be framed within 3 years from the last date prescribed for furnishing the last return in respect of the assessment year 2002-03, and, the prescribed date for filing of the return for the said year expired on 30.04.2006. However, the assessment in respect of the said assessment year became much belatedly therefrom, framed on 10.12.2007 or the said assessment to tax liability of the respondent became framed beyond the period of limitation as prescribed in the hereinafter extracted provisions, as were applicable at the time of drawing assessment(s) to tax liabilities qua the respondent. Therefore, not only the initial assessment order is vitiated but also the re-assessment thereof is also vitiated. "On the day specified in the notice or as soon as afterwards as may be, the Assessing Authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the Assessing Authority may require on specified points, [pass an order of assessment within a period of three years from the last date prescribed for furnishing the last return in respect of any period]" 12. In aftermath, there is no merit in the instant writ petition, and this Court is constrained to dismiss the same. Hence, the instant writ petition is dismissed.